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To amend sections 111.16, 1775.20, and 1782.433 and to | 1 |
enact sections 1775.45 to 1745.52, 1782.241, and | 2 |
1782.242 of the Revised Code to modify the Uniform | 3 |
Partnership Law relative to the accounting a | 4 |
partner must make to the partnership and mergers | 5 |
and consolidations involving a general partnership, | 6 |
and to modify the Limited Partnerships Law relative | 7 |
to the standard of care owed a partnership by the | 8 |
general partners and self-dealing by a partner. | 9 |
Section 1. That sections 111.16, 1775.20, and 1782.433 be | 10 |
amended and sections 1775.45, 1775.46, 1775.47, 1775.48, 1775.49, | 11 |
1775.50, 1775.51, 1775.52, 1782.241, and 1782.242 of the Revised | 12 |
Code be enacted to read as follows: | 13 |
Sec. 111.16. The secretary of state shall charge and | 14 |
collect, for the benefit of the state, the following fees: | 15 |
(A) For filing and recording articles of incorporation of a | 16 |
domestic corporation, including designation of agent: | 17 |
(1) Wherein the corporation shall not be authorized to issue | 18 |
any shares of capital stock, one hundred twenty-five dollars; | 19 |
(2) Wherein the corporation shall be authorized to issue | 20 |
shares of capital stock, with or without par value: | 21 |
(a) Ten cents for each share authorized up to and including | 22 |
one thousand shares; | 23 |
(b) Five cents for each share authorized in excess of one | 24 |
thousand shares up to and including ten thousand shares; | 25 |
(c) Two cents for each share authorized in excess of ten | 26 |
thousand shares up to and including fifty thousand shares; | 27 |
(d) One cent for each share authorized in excess of fifty | 28 |
thousand shares up to and including one hundred thousand shares; | 29 |
(e) One-half cent for each share authorized in excess of one | 30 |
hundred thousand shares up to and including five hundred thousand | 31 |
shares; | 32 |
(f) One-quarter cent for each share authorized in excess of | 33 |
five hundred thousand shares; provided no fee shall be less than | 34 |
one hundred twenty-five dollars or greater than one hundred | 35 |
thousand dollars. | 36 |
(B) For filing and recording a certificate of amendment to | 37 |
or amended articles of incorporation of a domestic corporation, or | 38 |
for filing and recording a certificate of reorganization, a | 39 |
certificate of dissolution, or an amendment to a foreign license | 40 |
application: | 41 |
(1) If the domestic corporation is not authorized to issue | 42 |
any shares of capital stock, fifty dollars; | 43 |
(2) If the domestic corporation is authorized to issue | 44 |
shares of capital stock, fifty dollars, and in case of any | 45 |
increase in the number of shares authorized to be issued, a | 46 |
further sum computed in accordance with the schedule set forth in | 47 |
division (A)(2) of this section less a credit computed in the same | 48 |
manner for the number of shares previously authorized to be issued | 49 |
by the corporation; provided no fee under division (B)(2) of this | 50 |
section shall be greater than one hundred thousand dollars; | 51 |
(3) If the foreign corporation is not authorized to issue | 52 |
any shares of capital stock, fifty dollars; | 53 |
(4) If the foreign corporation is authorized to issue shares | 54 |
of capital stock, fifty dollars. | 55 |
(C) For filing and recording articles of incorporation of a | 56 |
savings and loan association, one hundred twenty-five dollars; and | 57 |
for filing and recording a certificate of amendment to or amended | 58 |
articles of incorporation of a savings and loan association, | 59 |
fifty dollars; | 60 |
(D) For filing and recording a certificate of merger or | 61 |
consolidation, one hundred twenty-five dollars and, in the case | 62 |
of any new corporation resulting from a consolidation or any | 63 |
surviving corporation that has an increased number of shares | 64 |
authorized to be issued resulting from a merger, an additional sum | 65 |
computed in accordance with the schedule set forth in division | 66 |
(A)(2) of this section less a credit computed in the same manner | 67 |
for the number of shares previously authorized to be issued or | 68 |
represented in this state by each of the corporations for which a | 69 |
consolidation or merger is effected by the certificate; | 70 |
(E) For filing and recording articles of incorporation of a | 71 |
credit union or the American credit union guaranty association, | 72 |
one hundred twenty-five dollars, and for filing and recording a | 73 |
certificate of increase in capital stock or any other amendment of | 74 |
the articles of incorporation of a credit union or the | 75 |
association, fifty dollars; | 76 |
(F) For filing and recording articles of organization of a | 77 |
limited liability company, for filing and recording an application | 78 |
to become a registered foreign limited liability company, for | 79 |
filing and recording a registration application to become a | 80 |
domestic limited liability partnership, or for filing and | 81 |
recording an application to become a registered foreign limited | 82 |
liability partnership, one hundred twenty-five dollars; | 83 |
(G) For filing and recording a certificate of limited | 84 |
partnership or an application for registration as a foreign | 85 |
limited partnership, one hundred twenty-five dollars. | 86 |
(H) For filing a copy of papers evidencing the incorporation | 87 |
of a municipal corporation or of annexation of territory by a | 88 |
municipal corporation, five dollars, to be paid by the municipal | 89 |
corporation, the petitioners therefor, or their agent; | 90 |
(I) For filing and recording any of the following: | 91 |
(1) A license to transact business in this state by a | 92 |
foreign corporation for profit pursuant to section 1703.04 of the | 93 |
Revised Code or a foreign nonprofit corporation pursuant to | 94 |
section 1703.27 of the Revised Code, one hundred twenty-five | 95 |
dollars; | 96 |
(2) An annual report or annual statement pursuant to section | 97 |
1775.63 or 1785.06 of the Revised Code, twenty-five dollars; | 98 |
(3) Except as otherwise provided in this section or any | 99 |
other section of the Revised Code, any other certificate or paper | 100 |
that is required to be filed and recorded or is permitted to be | 101 |
filed and recorded by any provision of the Revised Code with the | 102 |
secretary of state, twenty-five dollars. | 103 |
(J) For filing any certificate or paper not required to be | 104 |
recorded, five dollars; | 105 |
(K)(1) For making copies of any certificate or other paper | 106 |
filed in the office of the secretary of state, a fee not to | 107 |
exceed one dollar per page, except as otherwise provided in the | 108 |
Revised Code, and for creating and affixing the seal of the office | 109 |
of the secretary of state to any good standing or other | 110 |
certificate, five dollars. For copies of certificates or papers | 111 |
required by state officers for official purpose, no charge shall | 112 |
be made. | 113 |
(2) For creating and affixing the seal of the office of the | 114 |
secretary of state to the certificates described in division (E) | 115 |
of section 1701.81, division (E) of section 1705.38,
| 116 |
(D) of section 1702.43, division (E) of section 1775.47, or | 117 |
division (E) of section 1782.433 of the Revised Code, twenty-five | 118 |
dollars. | 119 |
(L) For a minister's license to solemnize marriages, ten | 120 |
dollars; | 121 |
(M) For examining documents to be filed at a later date for | 122 |
the purpose of advising as to the acceptability of the proposed | 123 |
filing, fifty dollars; | 124 |
(N) Fifty dollars for filing and recording any of the | 125 |
following: | 126 |
(1) A certificate of dissolution and accompanying documents, | 127 |
or a certificate of cancellation, under section 1701.86, 1702.47, | 128 |
1705.43, or 1782.10 of the Revised Code; | 129 |
(2) A notice of dissolution of a foreign licensed | 130 |
corporation or a certificate of surrender of license by a foreign | 131 |
licensed corporation under section 1703.17 of the Revised Code; | 132 |
(3) The withdrawal of registration of a foreign or domestic | 133 |
limited liability partnership under section 1775.61 or 1775.64 of | 134 |
the Revised Code, or the certificate of cancellation of | 135 |
registration of a foreign limited liability company under section | 136 |
1705.57 of the Revised Code; | 137 |
(4) The filing of a cancellation of disclaimer of general | 138 |
partner status under Chapter 1782. of the Revised Code. | 139 |
(O) For filing a statement of continued existence by a | 140 |
nonprofit corporation, twenty-five dollars; | 141 |
(P) For filing a restatement under section 1705.08 or | 142 |
1782.09 of the Revised Code, an amendment to a certificate of | 143 |
cancellation under section 1782.10 of the Revised Code, an | 144 |
amendment under section 1705.08 or 1782.09 of the Revised Code, or | 145 |
a correction under section 1705.55, 1775.61, 1775.64, or 1782.52 | 146 |
of the Revised Code, fifty dollars; | 147 |
(Q) For filing for reinstatement of an entity cancelled by | 148 |
operation of law, by the secretary of state, by order of the | 149 |
department of taxation, or by order of a court, twenty-five | 150 |
dollars; | 151 |
(R) For filing a change of agent, resignation of agent, or | 152 |
change of agent's address under section 1701.07, 1702.06, | 153 |
1703.041, 1703.27, 1705.06, 1705.55, 1746.04, 1747.03, or 1782.04 | 154 |
of the Revised Code, twenty-five dollars; | 155 |
(S) For filing and recording any of the following: | 156 |
(1) An application for the exclusive right to use a name or | 157 |
an application to reserve a name for future use under section | 158 |
1701.05, 1702.05, 1703.31, 1705.05, or 1746.06 of the Revised | 159 |
Code, fifty dollars; | 160 |
(2) A trade name or fictitious name registration or report, | 161 |
fifty dollars; | 162 |
(3) An application to renew any item covered by division | 163 |
(S)(1) or (2) of this section that is permitted to be renewed, | 164 |
twenty-five dollars; | 165 |
(4) An assignment of rights for use of a name covered by | 166 |
division (S)(1), (2), or (3) of this section, the cancellation of | 167 |
a name registration or name reservation that is so covered, or | 168 |
notice of a change of address of the registrant of a name that is | 169 |
so covered, twenty-five dollars. | 170 |
(T) For filing and recording a report to operate a business | 171 |
trust or a real estate investment trust, either foreign or | 172 |
domestic, one hundred twenty-five dollars; and for filing and | 173 |
recording an amendment to a report or associated trust instrument, | 174 |
or a surrender of authority, to operate a business trust or real | 175 |
estate investment trust, fifty dollars; | 176 |
(U)(1) For filing and recording the registration of a | 177 |
trademark, service mark, or mark of ownership, one hundred | 178 |
twenty-five dollars; | 179 |
(2) For filing and recording the change of address of a | 180 |
registrant, the assignment of rights to a registration, a renewal | 181 |
of a registration, or the cancellation of a registration | 182 |
associated with a trademark, service mark, or mark of ownership, | 183 |
twenty-five dollars. | 184 |
Fees specified in this section may be paid by cash, check, or | 185 |
money order, by credit
| 186 |
113.40 of the Revised Code, or by an alternative payment program | 187 |
in accordance with division (B) of section 111.18 of the Revised | 188 |
Code. Any credit card number or the expiration date of any credit | 189 |
card is not subject to disclosure under Chapter 149. of the | 190 |
Revised Code. | 191 |
Sec. 1775.20. (A) Every partner
| 192 |
partner of a limited partnership, shall account to the partnership | 193 |
for any benefit and hold as trustee for it any profits derived by | 194 |
195 | |
transaction connected with the formation, conduct, or liquidation | 196 |
of the partnership or
from any use by
| 197 |
property. | 198 |
(B) This section applies also to the representatives of a | 199 |
deceased partner engaged in the liquidation of the affairs of the | 200 |
partnership as the personal representatives of the last surviving | 201 |
partner. | 202 |
Sec. 1775.45. (A) Pursuant to a written agreement of merger | 203 |
between the constituent entities as provided in this section, a | 204 |
domestic general partnership and one or more additional domestic | 205 |
general partnerships or other domestic or foreign entities may be | 206 |
merged into a surviving domestic general partnership. Pursuant to | 207 |
a written agreement of consolidation between the constituent | 208 |
entities as provided in this section, two or more domestic or | 209 |
foreign entities may be consolidated into a new domestic general | 210 |
partnership formed by such consolidation. If any constituent | 211 |
entity is formed or organized under the laws of any state other | 212 |
than this state or under any chapter of the Revised Code other | 213 |
than this chapter, the merger or consolidation also must be | 214 |
permitted by the chapter of the Revised Code under which each | 215 |
domestic constituent entity exists and by the laws under which | 216 |
each foreign constituent entity exists. | 217 |
(B) The written agreement of merger or consolidation of | 218 |
constituent entities into a surviving or new domestic general | 219 |
partnership shall set forth all of the following: | 220 |
(1) The name and the form of entity of each constituent | 221 |
entity, the state under the laws of which each constituent entity | 222 |
exists, and the name of the surviving or new domestic general | 223 |
partnership; | 224 |
(2) In the case of a merger, that one or more specified | 225 |
constituent entities will be merged into a specified surviving | 226 |
domestic general partnership, and, in the case of a | 227 |
consolidation, that the constituent entities will be consolidated | 228 |
into a new domestic general partnership; | 229 |
(3) All statements and matters required to be set forth in | 230 |
such an agreement of merger or consolidation by the laws under | 231 |
which each constituent entity exists; | 232 |
(4) In the case of a consolidation, the partnership | 233 |
agreement of the new domestic general partnership or a provision | 234 |
that the written partnership agreement of a specified constituent | 235 |
general partnership, a copy of which shall be attached to the | 236 |
agreement of consolidation, with any amendments that are set forth | 237 |
in the agreement of consolidation, shall be the agreement of | 238 |
general partnership of the new domestic general partnership; | 239 |
(5) The name and address of the statutory agent upon whom | 240 |
any process, notice, or demand against any constituent entity, the | 241 |
surviving domestic general partnership, or the new domestic | 242 |
general partnership may be served; | 243 |
(6) In the case of a merger, any changes in the general | 244 |
partners of the surviving domestic general partnership and, in the | 245 |
case of a consolidation, the general partners of the new domestic | 246 |
general partnership or a provision specifying the general partners | 247 |
of one or more specified constituent partnerships that shall | 248 |
constitute the initial general partners of the new domestic | 249 |
general partnership; | 250 |
(7) The terms of the merger or consolidation; the mode of | 251 |
carrying them into effect; and the manner and basis of converting | 252 |
the interests or shares in the constituent entities into, or | 253 |
substituting the interests or shares in the constituent entities | 254 |
for, interests, evidences of indebtedness, other securities, | 255 |
cash, rights, or any other property or any combination of | 256 |
interests, evidences of indebtedness, securities, cash, rights, | 257 |
or any other property of the surviving domestic general | 258 |
partnership, of the new domestic general partnership, or of any | 259 |
other entity. No such conversion or substitution shall be | 260 |
effected if there are reasonable grounds to believe that the | 261 |
conversion or substitution would render the surviving or new | 262 |
domestic general partnership unable to pay its obligations as they | 263 |
become due in the usual course of its affairs. | 264 |
(C) The written agreement of merger or consolidation of | 265 |
constituent entities into a surviving or new domestic general | 266 |
partnership may set forth any of the following: | 267 |
(1) The effective date of the merger or consolidation, which | 268 |
date may be on or after the date of the filing of the certificate | 269 |
of merger or consolidation; | 270 |
(2) A provision authorizing one or more of the constituent | 271 |
entities to abandon the proposed merger or consolidation prior to | 272 |
filing the certificate of merger or consolidation pursuant to | 273 |
section 1775.47 of the Revised Code by action of the general | 274 |
partners of a constituent partnership, the directors of a | 275 |
constituent corporation, or the comparable representatives of any | 276 |
other constituent entity; | 277 |
(3) In the case of a merger, any amendments to the agreement | 278 |
of general partnership of the surviving domestic general | 279 |
partnership, or a provision that the written partnership agreement | 280 |
of a specified constituent general partnership other than the | 281 |
surviving domestic general partnership, with any amendments that | 282 |
are set forth in the agreement of merger, shall be the partnership | 283 |
agreement of the surviving domestic general partnership; | 284 |
(4) A statement of, or a statement of the method of | 285 |
determining, the fair value of the assets to be owned by the | 286 |
surviving domestic general partnership; | 287 |
(5) The parties to the agreement of merger or consolidation | 288 |
in addition to the constituent entities; | 289 |
(6) Any additional provision necessary or desirable with | 290 |
respect to the proposed merger or consolidation. | 291 |
(D) To effect the merger or consolidation, the agreement of | 292 |
merger or consolidation shall be adopted by the general partners | 293 |
of each constituent domestic general partnership, including the | 294 |
surviving domestic general partnership in the case of a merger, | 295 |
and shall be adopted by or otherwise authorized by or on behalf of | 296 |
each other constituent entity in accordance with the laws under | 297 |
which it exists. | 298 |
(E) All partners, whether or not they are entitled to vote | 299 |
or act, shall be given written notice of any meeting of general | 300 |
partners of a constituent domestic general partnership or of any | 301 |
proposed action by general partners of a constituent domestic | 302 |
general partnership, which meeting or action is to adopt an | 303 |
agreement of merger or consolidation. The notice shall be given | 304 |
to the partners either by mail at their addresses as they appear | 305 |
on the records of the partnership or in person and, unless the | 306 |
partnership agreement provides a shorter or longer period, shall | 307 |
be given not less than seven and not more than sixty days before | 308 |
the meeting or the effective date of the action. The notice shall | 309 |
be accompanied by a copy or a summary of the material provisions | 310 |
of the agreement of merger or consolidation. | 311 |
(F) The vote or action of the general partners of a | 312 |
constituent domestic general partnership that is required to adopt | 313 |
an agreement of merger or consolidation is the unanimous vote or | 314 |
action of the general partners or such different number or | 315 |
proportion as provided in writing in the partnership agreement. If | 316 |
the agreement of merger or consolidation would have an effect or | 317 |
authorize any action that under any applicable provision of law or | 318 |
the partnership agreement could be effected or authorized only by | 319 |
or pursuant to a specified vote or action of the partners, or of | 320 |
any class or group of partners, the agreement of merger or | 321 |
consolidation also shall be adopted or approved by the same vote | 322 |
or action as would be required to effect that change or authorize | 323 |
that action. Each person who will continue to be or who will | 324 |
become a general partner of a partnership that is the surviving or | 325 |
new entity in a merger or consolidation shall specifically agree | 326 |
in writing to continue or to become, as the case may be, a general | 327 |
partner of the partnership that is the surviving or new entity. | 328 |
(G) At any time before the filing of the certificate of | 329 |
merger or consolidation pursuant to section 1775.47 of the Revised | 330 |
Code, the merger or consolidation may be abandoned by the general | 331 |
partners of any constituent partnership, the directors of any | 332 |
constituent corporation, or the comparable representatives of any | 333 |
other constituent entity if the general partners, directors, or | 334 |
other representatives are authorized to do so by the agreement of | 335 |
merger or consolidation or by the same vote or action as was | 336 |
required to adopt the agreement of merger or consolidation. The | 337 |
agreement of merger or consolidation may contain a provision | 338 |
authorizing less than all of the general partners of any | 339 |
constituent partnership, the directors of any constituent | 340 |
corporation, or the comparable representatives of any other | 341 |
constituent entity to amend the agreement of merger or | 342 |
consolidation at any time before the filing of the certificate of | 343 |
merger or consolidation, except that, after the adoption of the | 344 |
agreement of merger or consolidation by the general partners of | 345 |
any constituent domestic general partnership, less than all of the | 346 |
general partners shall not be authorized to amend the agreement of | 347 |
merger or consolidation to do any of the following: | 348 |
(1) Alter or change the amount or kind of interests, shares, | 349 |
evidences of indebtedness, other securities, cash, rights, or any | 350 |
other property to be received by general partners of the | 351 |
constituent domestic general partnership in conversion of, or in | 352 |
substitution for, their interests; | 353 |
(2) Alter or change any term of the partnership agreement of | 354 |
the surviving or new domestic general partnership, except for | 355 |
alterations or changes that could otherwise be adopted by the | 356 |
general partners of the surviving or new domestic general | 357 |
partnership; | 358 |
(3) Alter or change any other terms and conditions of the | 359 |
agreement of merger or consolidation if any of the alterations or | 360 |
changes, alone or in the aggregate, would materially adversely | 361 |
affect the general partners or any class or group of general | 362 |
partners of the constituent domestic general partnership. | 363 |
Sec. 1775.46. (A) Pursuant to a written agreement of merger | 364 |
or consolidation between the constituent entities as provided in | 365 |
this section, a domestic general partnership and one or more | 366 |
additional domestic or foreign entities may be merged into a | 367 |
surviving entity other than a domestic general partnership, or a | 368 |
domestic general partnership together with one or more additional | 369 |
domestic or foreign entities may be consolidated into a new entity | 370 |
other than a domestic general partnership to be formed by such | 371 |
consolidation. The merger or consolidation must be permitted by | 372 |
the chapter of the Revised Code under which each domestic | 373 |
constituent entity exists and by the laws under which each foreign | 374 |
constituent entity exists. | 375 |
(B) The written agreement of merger or consolidation shall | 376 |
set forth all of the following: | 377 |
(1) The name and the form of entity of each constituent | 378 |
entity and the state under the laws of which each constituent | 379 |
entity exists; | 380 |
(2) In the case of a merger, that one or more specified | 381 |
constituent domestic general partnerships and other specified | 382 |
constituent entities will be merged into a specified surviving | 383 |
foreign entity or surviving domestic entity other than a domestic | 384 |
general partnership, or, in the case of a consolidation, that the | 385 |
constituent entities will be consolidated into a new foreign | 386 |
entity or a new domestic entity other than a domestic general | 387 |
partnership; | 388 |
(3) If the surviving or new entity is a foreign general | 389 |
partnership, all statements and matters that would be required by | 390 |
section 1775.45 of the Revised Code if the surviving or new entity | 391 |
were a domestic general partnership; | 392 |
(4) The name and the form of entity of the surviving or new | 393 |
entity, the state under the laws of which the surviving entity | 394 |
exists or the new entity is to exist, and the location of the | 395 |
principal office of the surviving or new entity; | 396 |
(5) All additional statements and matters required to be set | 397 |
forth in such an agreement of merger or consolidation by the laws | 398 |
under which each constituent entity exists and, in the case of a | 399 |
consolidation, the new entity is to exist; | 400 |
(6) The consent of the surviving or new foreign entity to be | 401 |
sued and served with process in this state and the irrevocable | 402 |
appointment of the secretary of state as its agent to accept | 403 |
service of process in any proceeding in this state to enforce | 404 |
against the surviving or new foreign entity any obligation of any | 405 |
constituent domestic general partnership or to enforce the rights | 406 |
of a dissenting partner of any constituent domestic general | 407 |
partnership; | 408 |
(7) If the surviving or new entity is a foreign corporation | 409 |
that desires to transact business in this state as a foreign | 410 |
corporation, a statement to that effect, together with a statement | 411 |
regarding the appointment of a statutory agent and service of any | 412 |
process, notice, or demand upon that statutory agent or the | 413 |
secretary of state, as required when a foreign corporation applies | 414 |
for a license to transact business in this state; | 415 |
(8) If the surviving or new entity is a foreign limited | 416 |
partnership that desires to transact business in this state as a | 417 |
foreign limited partnership, a statement to that effect, together | 418 |
with all of the information required under section 1782.49 of the | 419 |
Revised Code when a foreign limited partnership registers to | 420 |
transact business in this state; | 421 |
(9) If the surviving or new entity is a foreign limited | 422 |
liability company that desires to transact business in this state | 423 |
as a foreign limited liability company, a statement to that | 424 |
effect, together with all of the information required under | 425 |
section 1705.54 of the Revised Code when a foreign limited | 426 |
liability company registers to transact business in this state. | 427 |
(C) The written agreement of merger or consolidation also | 428 |
may set forth any additional provision permitted by the laws of | 429 |
any state under the laws of which any constituent entity exists, | 430 |
consistent with the laws under which the surviving entity exists | 431 |
or the new entity is to exist. | 432 |
(D) To effect the merger or consolidation, the agreement of | 433 |
merger or consolidation shall be adopted by the general partners | 434 |
of each constituent domestic general partnership, in the same | 435 |
manner and with the same notice to and vote or action of partners | 436 |
or of a particular class or group of partners as is required by | 437 |
section 1775.45 of the Revised Code. The agreement of merger or | 438 |
consolidation also shall be approved or otherwise authorized by or | 439 |
on behalf of each constituent entity in accordance with the laws | 440 |
under which it exists. Each person who will continue to be or who | 441 |
will become a general partner of a partnership that is the | 442 |
surviving or new entity in a merger or consolidation shall | 443 |
specifically agree in writing to continue or to become, as the | 444 |
case may be, a general partner of the surviving or new entity. | 445 |
(E) At any time before the filing of the certificate of | 446 |
merger or consolidation pursuant to section 1775.47 of the Revised | 447 |
Code, the merger or consolidation may be abandoned by the general | 448 |
partners of any constituent partnership, the directors of any | 449 |
constituent corporation, or the comparable representatives of any | 450 |
other constituent entity if the general partners, directors, or | 451 |
comparable representatives are authorized to do so by the | 452 |
agreement of merger or consolidation. The agreement of merger or | 453 |
consolidation may contain a provision authorizing less than all of | 454 |
the general partners of any constituent partnership, the directors | 455 |
of any constituent corporation, or the comparable representatives | 456 |
of any other constituent entity to amend the agreement of merger | 457 |
or consolidation at any time before the filing of the certificate | 458 |
of merger or consolidation, except that after the adoption of the | 459 |
agreement of merger or consolidation by the general partners of | 460 |
any constituent domestic general partnership, less than all of the | 461 |
general partners shall not be authorized to amend the agreement of | 462 |
merger or consolidation to do any of the following: | 463 |
(1) Alter or change the amount or kind of interests, shares, | 464 |
evidences of indebtedness, other securities, cash, rights, or any | 465 |
other property to be received by general partners of the | 466 |
constituent domestic general partnership in conversion of or in | 467 |
substitution for their interests; | 468 |
(2) If the surviving or new entity is a partnership, alter | 469 |
or change any term of the partnership agreement of the surviving | 470 |
or new partnership, except for alterations or changes that | 471 |
otherwise could be adopted by the general partners of the | 472 |
surviving or new partnership; | 473 |
(3) If the surviving or new entity is a corporation or any | 474 |
other entity other than a partnership, alter or change any term of | 475 |
the articles or comparable instrument of the surviving or new | 476 |
corporation or entity, except for alterations or changes that | 477 |
otherwise could be adopted by the directors or comparable | 478 |
representatives of the surviving or new corporation or entity; | 479 |
(4) Alter or change any other terms and conditions of the | 480 |
agreement of merger or consolidation if any of the alterations or | 481 |
changes, alone or in the aggregate, would materially adversely | 482 |
affect the general partners or any class or group of general | 483 |
partners of the constituent domestic general partnership. | 484 |
Sec. 1775.47. (A) Upon the adoption by each constituent | 485 |
entity of an agreement of merger or consolidation pursuant to | 486 |
section 1775.45 or 1775.46 of the Revised Code, a certificate of | 487 |
merger or consolidation shall be filed with the secretary of state | 488 |
that is signed by an authorized representative of each constituent | 489 |
entity. The certificate shall be on a form prescribed by the | 490 |
secretary of state and shall set forth only the information | 491 |
required by this section. | 492 |
(B)(1) The certificate of merger or consolidation shall set | 493 |
forth all of the following: | 494 |
(a) The name and the form of entity of each constituent | 495 |
entity and the state under the laws of which each constituent | 496 |
entity exists; | 497 |
(b) A statement that each constituent entity has complied | 498 |
with all of the laws under which it exists and that the laws | 499 |
permit the merger or consolidation; | 500 |
(c) The name and mailing address of the person or entity | 501 |
that is to provide, in response to any written request made by a | 502 |
shareholder, partner, or other equity holder of a constituent | 503 |
entity, a copy of the agreement of merger or consolidation; | 504 |
(d) The effective date of the merger or consolidation, which | 505 |
date may be on or after the date of the filing of the certificate; | 506 |
(e) The signature of the representative or representatives | 507 |
authorized to sign the certificate on behalf of each constituent | 508 |
entity and the office held or the capacity in which the | 509 |
representative is acting; | 510 |
(f) A statement that the agreement of merger or | 511 |
consolidation is authorized on behalf of each constituent entity | 512 |
and that the persons who signed the certificate on behalf of each | 513 |
entity are authorized to do so; | 514 |
(g) In the case of a merger, a statement that one or more | 515 |
specified constituent entities will be merged into a specified | 516 |
surviving entity or, in the case of a consolidation, a statement | 517 |
that the constituent entities will be consolidated into a new | 518 |
entity; | 519 |
(h) The name and form of the surviving entity in the case | 520 |
of a merger or the name and form of the new entity in the case of | 521 |
a consolidation; | 522 |
(i) In the case of a merger, if the surviving entity is a | 523 |
foreign entity not licensed to transact business in this state, | 524 |
the name and address of the statutory agent upon whom any process, | 525 |
notice, or demand may be served; | 526 |
(j) In the case of a consolidation, the name and address of | 527 |
the statutory agent upon whom any process, notice, or demand | 528 |
against any constituent entity or the new entity may be served. | 529 |
(2) In the case of a consolidation into a new domestic | 530 |
corporation, limited liability company, or limited partnership, | 531 |
the articles of incorporation, the articles of organization, or | 532 |
the certificate of limited partnership of the new domestic entity | 533 |
shall be filed with the certificate of consolidation. | 534 |
(3) In the case of a merger into a domestic corporation, | 535 |
limited liability company, or limited partnership, any amendments | 536 |
to the articles of incorporation, articles of organization, or | 537 |
certificate of limited partnership of the surviving domestic | 538 |
entity shall be filed with the certificate of merger. | 539 |
(4) If the surviving or new entity is a foreign entity that | 540 |
desires to transact business in this state as a foreign | 541 |
corporation, limited liability company, or limited partnership, | 542 |
the certificate of merger or consolidation shall be accompanied by | 543 |
the information required by division (B)(7), (8), or (9) of | 544 |
section 1775.46 of the Revised Code. | 545 |
(5) If a foreign or domestic corporation licensed to | 546 |
transact business in this state is a constituent entity and the | 547 |
surviving or new entity resulting from the merger or consolidation | 548 |
is not a foreign or domestic corporation that is to be licensed to | 549 |
transact business in this state, the certificate of merger or | 550 |
consolidation shall be accompanied by the affidavits, receipts, | 551 |
certificates, or other evidence required by division (H) of | 552 |
section 1701.86 of the Revised Code, with respect to each domestic | 553 |
constituent corporation, and by the affidavits, receipts, | 554 |
certificates, or other evidence required by division (C) or (D) of | 555 |
section 1703.17 of the Revised Code, with respect to each foreign | 556 |
constituent corporation licensed to transact business in this | 557 |
state. | 558 |
(C) If any constituent entity in a merger or consolidation | 559 |
is organized or formed under the laws of a state other than this | 560 |
state or under any chapter of the Revised Code other than this | 561 |
chapter, there also shall be filed in the proper office all | 562 |
documents that are required to be filed in connection with the | 563 |
merger or consolidation by the laws of that state or by that | 564 |
chapter. | 565 |
(D) Upon the filing of a certificate of merger or | 566 |
consolidation and other filings as described in division (C) of | 567 |
this section or at any later date that the certificate of merger | 568 |
or consolidation specifies, the merger or consolidation is | 569 |
effective, subject to the limitation specified in division (B)(7) | 570 |
of section 1775.45 of the Revised Code. | 571 |
(E) The secretary of state shall furnish, upon request and | 572 |
payment of the fee specified in division (K)(2) of section 111.16 | 573 |
of the Revised Code, the secretary of state's certificate setting | 574 |
forth: the name and form of entity of each constituent entity and | 575 |
the states under the laws of which each constituent entity existed | 576 |
prior to the merger or consolidation; the name and the form of | 577 |
entity of the surviving or new entity and the state under the laws | 578 |
of which the surviving entity exists or the new entity is to | 579 |
exist; the date of filing of the certificate of merger or | 580 |
consolidation with the secretary of state; and the effective date | 581 |
of the merger or consolidation. The certificate of the secretary | 582 |
of state, or a copy of the certificate of merger or consolidation | 583 |
certified by the secretary of state, may be filed for record in | 584 |
the office of the recorder of any county in this state and, if | 585 |
filed, shall be recorded in the records of deeds for that county. | 586 |
For that recording, the county recorder shall charge and collect | 587 |
the same fee as in the case of deeds. | 588 |
Sec. 1775.48. (A) When a merger or consolidation becomes | 589 |
effective, all of the following apply: | 590 |
(1) The separate existence of each constituent entity other | 591 |
than the surviving entity in a merger shall cease, except that | 592 |
whenever a conveyance, assignment, transfer, deed, or other | 593 |
instrument or act is necessary to vest property or rights in the | 594 |
surviving or new entity, the general partners, officers, or other | 595 |
authorized representatives of the respective constituent entities | 596 |
shall execute, acknowledge, and deliver such instruments and do | 597 |
such acts. For these purposes, the existence of the constituent | 598 |
entities and the authority of their respective general partners, | 599 |
officers, directors, or other representatives are continued | 600 |
notwithstanding the merger or consolidation. | 601 |
(2) In the case of a consolidation, the new entity exists | 602 |
when the consolidation becomes effective and, if the new entity is | 603 |
a domestic general partnership, the written partnership agreement | 604 |
contained in or provided for in the agreement of consolidation | 605 |
shall be its original partnership agreement. | 606 |
(3) In the case of a merger in which the surviving entity | 607 |
is a general partnership, the written partnership agreement of the | 608 |
surviving general partnership in effect immediately prior to the | 609 |
time the merger becomes effective shall be its partnership | 610 |
agreement after the merger except as otherwise provided in the | 611 |
agreement of merger. | 612 |
(4) The surviving or new entity possesses all of the | 613 |
following, and all of the following are vested in the surviving or | 614 |
new entity without further act or deed: | 615 |
(a) Except to the extent limited by the mandatory provisions | 616 |
of applicable law, the following: | 617 |
(i) All assets and property of every description of each | 618 |
constituent entity, and every interest in the assets and property | 619 |
of each constituent entity, wherever the assets, property, and | 620 |
interests are located. Title to any real estate or any interest | 621 |
in real estate that was vested in any constituent entity shall | 622 |
not revert or in any way be impaired by reason of the merger or | 623 |
consolidation. | 624 |
(ii) The rights, privileges, immunities, powers, franchises, | 625 |
and authority, whether of a public or private nature, of each | 626 |
constituent entity. | 627 |
(b) All obligations belonging to or due to each constituent | 628 |
entity. | 629 |
(5) The surviving or new entity is liable for all the | 630 |
obligations of each constituent entity, including liability to | 631 |
dissenting partners, dissenting shareholders, or other dissenting | 632 |
equity holders. Any claim existing or any action or proceeding | 633 |
pending by or against any constituent entity may be prosecuted to | 634 |
judgment with right of appeal, as if the merger or consolidation | 635 |
had not taken place, or the surviving or new entity may be | 636 |
substituted in place of any constituent entity. | 637 |
(6) All the rights of creditors of each constituent entity | 638 |
are preserved unimpaired, and all liens upon the property of any | 639 |
constituent entity are preserved unimpaired, on only the property | 640 |
affected by such liens immediately before the effective date of | 641 |
the merger or consolidation. If a general partner of a | 642 |
constituent partnership is not a general partner of the entity | 643 |
surviving or the new entity resulting from the merger or | 644 |
consolidation, then the former general partner shall have no | 645 |
liability for any obligation incurred after the merger or | 646 |
consolidation except to the extent that a former creditor of the | 647 |
constituent partnership in which the former general partner was a | 648 |
general partner extends credit to the surviving or new entity | 649 |
reasonably believing that the former general partner continued as | 650 |
a general partner of the surviving or new entity. | 651 |
(B) If a general partner of a constituent partnership is not | 652 |
a general partner of the entity surviving or the new entity | 653 |
resulting from the merger or consolidation, then unless that | 654 |
general partner agrees otherwise in writing, the general partner | 655 |
shall be indemnified by the surviving or new entity against all | 656 |
present or future liabilities of the constituent partnership of | 657 |
which the general partner was a general partner. Any amount | 658 |
payable pursuant to section 1775.50 of the Revised Code to a | 659 |
partner of the constituent partnership in which that general | 660 |
partner was a partner shall be a present liability of that | 661 |
constituent partnership. | 662 |
(C) In the case of a merger of a constituent domestic | 663 |
general partnership into a foreign surviving corporation, limited | 664 |
liability company, or general partnership that is not licensed or | 665 |
registered to transact business in this state or in the case of a | 666 |
consolidation of a constituent domestic limited partnership into a | 667 |
new foreign corporation, limited liability company, or limited | 668 |
partnership, if the surviving or new entity intends to transact | 669 |
business in this state and the certificate of merger or | 670 |
consolidation is accompanied by the information described in | 671 |
division (B)(4) of section 1775.47 of the Revised Code, then on | 672 |
the effective date of the merger or consolidation the surviving or | 673 |
new entity shall be considered to have complied with the | 674 |
requirements for procuring a license or for registration to | 675 |
transact business in this state as a foreign corporation, limited | 676 |
liability company, or limited partnership, as the case may be. In | 677 |
such a case, a copy of the certificate of merger or consolidation | 678 |
certified by the secretary of state constitutes the license | 679 |
certificate prescribed for a foreign corporation or the | 680 |
application for registration prescribed for a foreign limited | 681 |
liability company or foreign limited partnership. | 682 |
(D) Any action to set aside any merger or consolidation on | 683 |
the ground that any section of the Revised Code applicable to the | 684 |
merger or consolidation has not been complied with shall be | 685 |
brought within ninety days after the effective date of the merger | 686 |
or consolidation or forever be barred. | 687 |
(E) In the case of an entity organized or existing under the | 688 |
laws of any state other than this state, this section is subject | 689 |
to the laws of the state under the laws of which the entity exists | 690 |
or in which it has property. | 691 |
Sec. 1775.49. (A) Unless otherwise provided in writing in | 692 |
the partnership agreement of a constituent domestic general | 693 |
partnership, the following are entitled to relief as dissenting | 694 |
partners as provided in section 1775.50 of the Revised Code: | 695 |
(1) Partners of a domestic general partnership that is being | 696 |
merged or consolidated into a surviving or new entity, domestic or | 697 |
foreign, pursuant to section 1775.45 or 1775.46 of the Revised | 698 |
Code; | 699 |
(2) In the case of a merger into a domestic general | 700 |
partnership, partners of the surviving domestic general | 701 |
partnership who under section 1775.45 of the Revised Code are | 702 |
entitled to vote or act on the adoption of an agreement of merger, | 703 |
but only as to the interests so entitling them to vote or act. | 704 |
(B) Unless otherwise expressly agreed to in writing, a | 705 |
general partner of any constituent partnership shall be liable to | 706 |
the partners of the constituent partnership for any amount payable | 707 |
to them pursuant to section 1775.50 of the Revised Code as if the | 708 |
amount so payable were an existing liability of the constituent | 709 |
partnership at the time of the merger or consolidation. | 710 |
Sec. 1775.50. (A) A partner of a domestic general | 711 |
partnership is entitled to relief as a dissenting partner in | 712 |
respect of the proposals described in section 1775.49 of the | 713 |
Revised Code only in compliance with this section. | 714 |
(B) If the proposal of merger or consolidation is to be | 715 |
submitted to the partners at a meeting, the dissenting partner | 716 |
shall be a partner and a record holder of the partnership | 717 |
interests as to which the dissenting partner seeks relief as of | 718 |
the date fixed for the determination of partners entitled to | 719 |
notice of the meeting, and such interests shall not have been | 720 |
voted in favor of the proposal. Not later than ten days after the | 721 |
date on which the vote on the proposal was taken at the meeting of | 722 |
the partners, the dissenting partner shall deliver to the general | 723 |
partnership a written demand for payment to the dissenting partner | 724 |
of the fair cash value of the interests as to which the dissenting | 725 |
partner seeks relief that states the dissenting partner's address, | 726 |
the number and class of those interests, and the amount claimed by | 727 |
the dissenting partner as the fair cash value of the interests. | 728 |
(C) If the proposal of merger or consolidation is to be | 729 |
submitted to the partners for their written approval or other | 730 |
action without a meeting, the dissenting partner shall be a | 731 |
partner and a record holder of the interests of the partnership as | 732 |
to which the dissenting partner seeks relief as of the date the | 733 |
request for approval or action was sent to the partners entitled | 734 |
to act or otherwise approve the proposal, and the dissenting | 735 |
partner shall not have indicated approval of the proposal in the | 736 |
dissenting partner's capacity as a holder of such interests. Not | 737 |
later than fifteen days after the date on which the request for | 738 |
approval of or action on the proposal was mailed to the partners, | 739 |
the dissenting partner shall deliver to the partnership a written | 740 |
demand for payment to the dissenting partner of the fair cash | 741 |
value of the interests as to which the dissenting partner seeks | 742 |
relief, which demand shall state the dissenting partner's address, | 743 |
the number and class of such interests, and the amount claimed by | 744 |
the dissenting partner as the fair cash value of those interests. | 745 |
(D) In the case of a merger or consolidation, a demand | 746 |
served on the constituent domestic general partnership involved | 747 |
constitutes service on the surviving entity or the new entity, | 748 |
whether the demand is served before, on, or after the effective | 749 |
date of the merger or consolidation. | 750 |
(E) If the interests as to which a dissenting partner seeks | 751 |
relief are represented by certificates and if the domestic general | 752 |
partnership sends to the dissenting partner, at the address | 753 |
specified in the dissenting partner's demand, a request for | 754 |
certificates representing the interests as to which the dissenting | 755 |
partner seeks relief, the dissenting partner, within fifteen days | 756 |
from the date on which the request was sent, shall deliver to the | 757 |
general partnership the certificates requested so that the general | 758 |
partnership may endorse on them a legend to the effect that a | 759 |
demand for the fair cash value of such interests has been made. | 760 |
The general partnership promptly shall return the endorsed | 761 |
certificates to the dissenting partner. The failure of a | 762 |
dissenting partner to deliver such certificates terminates rights | 763 |
as a dissenting partner, at the option of the general partnership, | 764 |
exercised by written notice sent to the dissenting partner within | 765 |
twenty days after the lapse of the fifteen-day period, unless a | 766 |
court for good cause shown otherwise directs. If interests | 767 |
represented by a certificate on which such a legend has been | 768 |
endorsed are transferred, each new certificate issued for them | 769 |
shall bear a similar legend, together with the name of the | 770 |
original dissenting holder of such interests. Upon receiving a | 771 |
demand for payment from a dissenting partner who is a record | 772 |
holder of uncertificated interests, the general partnership shall | 773 |
make an appropriate notation of the demand for payment in its | 774 |
records. If uncertificated interests for which payment has been | 775 |
demanded are to be transferred, any writing sent to evidence the | 776 |
transfer shall bear the legend required for certificated interests | 777 |
as provided in this division. A transferee of the interests | 778 |
receiving a certificate so endorsed, or of uncertificated | 779 |
interests where such a notation has been made, acquires only such | 780 |
rights in the general partnership as the original partner holding | 781 |
such interests had immediately after the service of a demand for | 782 |
payment of the fair cash value of the interests. A request under | 783 |
this division by the general partnership is not an admission by it | 784 |
that the holder of the interest is entitled to relief under this | 785 |
section. | 786 |
(F) Unless the partnership agreement of the constituent | 787 |
domestic general partnership in which the dissenting partner was a | 788 |
partner provides a reasonable basis for determining and paying the | 789 |
fair cash value of the interests as to which the dissenting | 790 |
partner seeks relief or unless that partnership and the dissenting | 791 |
partner have come to an agreement on the fair cash value of the | 792 |
interests as to which the dissenting partner seeks relief, the | 793 |
dissenting partner or the general partnership, which in the case | 794 |
of a merger or consolidation may be the surviving or new entity, | 795 |
within ninety days after the service of the demand by the | 796 |
dissenting partner, may file a complaint under section 1775.51 of | 797 |
the Revised Code. The complaint shall be filed in the court of | 798 |
common pleas of the county in which the principal office of the | 799 |
general partnership that issued the interests is located or was | 800 |
located when the proposal of merger or consolidation was adopted | 801 |
by the partners of the general partnership. Other dissenting | 802 |
partners, within that ninety-day period, may join as plaintiffs or | 803 |
may be joined as defendants in any such proceeding, and any two or | 804 |
more such proceedings may be consolidated. | 805 |
(G) The right and obligation of a dissenting partner to | 806 |
receive such fair cash value and to sell such interests as to | 807 |
which the dissenting partner seeks relief and the right and | 808 |
obligation of the domestic general partnership to purchase such | 809 |
interests and to pay the fair cash value of them terminate if any | 810 |
of the following applies: | 811 |
(1) The dissenting partner has not complied with this | 812 |
section, unless the general partnership waives such failure. | 813 |
(2) The general partnership abandons the merger or | 814 |
consolidation or is finally enjoined or prevented from carrying it | 815 |
out, or the partners rescind their adoption or approval of the | 816 |
merger or consolidation. | 817 |
(3) The dissenting partner withdraws the dissenting | 818 |
partner's demand, with the consent of the general partnership. | 819 |
(4) All of the following apply: | 820 |
(a) The partnership agreement of the constituent domestic | 821 |
general partnership in which the dissenting partner was a partner | 822 |
does not provide a reasonable basis for determining and paying the | 823 |
dissenting partner the fair cash value of the dissenting partner's | 824 |
interest. | 825 |
(b) The general partnership and the dissenting partner have | 826 |
not agreed upon the fair cash value of the interest. | 827 |
(c) Neither the dissenting partner nor the general | 828 |
partnership has filed or joined in a complaint under division (F) | 829 |
of this section within the period provided in that division. | 830 |
(H) Unless otherwise provided in the partnership agreement | 831 |
of the constituent domestic general partnership in which the | 832 |
dissenting partner was a partner, from the time the dissenting | 833 |
partner gives the demand until either the termination of the | 834 |
rights and obligations arising from it or the purchase of the | 835 |
interests by the general partnership, all other rights accruing | 836 |
from such interests, including voting or distribution rights, are | 837 |
suspended. If, during the suspension, any distribution is paid in | 838 |
money upon interests of such class or any dividend, distribution, | 839 |
or interest is paid in money upon any securities issued in | 840 |
extinguishment of, or in substitution for, such interest, an | 841 |
amount equal to the dividend, distribution, or interest that, | 842 |
except for the suspension, would have been payable upon such | 843 |
interests or securities shall be paid to the holder of record as a | 844 |
credit upon the fair cash value of the interests. If the right to | 845 |
receive fair cash value is terminated other than by the purchase | 846 |
of the interests by the general partnership, all rights of the | 847 |
dissenting partner shall be restored and all distributions that, | 848 |
except for the suspension, would have been made shall be made to | 849 |
the holder of record of the interests at the time of termination. | 850 |
Sec. 1775.51. (A) When authorized by division (F) of | 851 |
section 1775.50 of the Revised Code, a dissenting partner or | 852 |
general partnership may file a complaint under this section | 853 |
demanding the relief described in this section. A complaint filed | 854 |
under this section shall contain a brief statement of the facts, | 855 |
including the vote or action by the partners and the facts | 856 |
entitling the dissenting partner to the relief demanded. No | 857 |
answer to such a complaint is required. Upon the filing of such a | 858 |
complaint, the court, on motion of the petitioner, shall enter an | 859 |
order fixing a date for a hearing on the complaint and requiring | 860 |
that a copy of the complaint and a notice of the filing and of the | 861 |
date for the hearing be given to the respondent or defendant in | 862 |
the manner in which summons is required to be served or | 863 |
substituted service is required to be made in other cases. On the | 864 |
date fixed for the hearing on the complaint or any adjournment of | 865 |
it, the court shall determine from the complaint and from such | 866 |
evidence as is submitted by either party whether the dissenting | 867 |
partner is entitled to be paid the fair cash value of any | 868 |
interests and, if so, the number and class of such interests. If | 869 |
the court finds that the dissenting partner is so entitled, it may | 870 |
appoint one or more persons as appraisers to receive evidence and | 871 |
to recommend a decision on the amount of the fair cash value. The | 872 |
appraisers have such power and authority as is specified in the | 873 |
order of their appointment. The court thereupon shall make a | 874 |
finding as to the fair cash value of the interests and shall | 875 |
render judgment against the general partnership for the payment of | 876 |
it, with interest at such rate and from such date as the court | 877 |
considers equitable. The costs of the proceeding, including | 878 |
reasonable compensation to the appraisers to be fixed by the | 879 |
court, shall be assessed or apportioned as the court considers | 880 |
equitable. The proceeding is a special proceeding and final | 881 |
orders in it may be vacated, modified, or reversed on appeal | 882 |
pursuant to the Rules of Appellate Procedure and, to the extent | 883 |
not in conflict with those rules, Chapter 2505. of the Revised | 884 |
Code. If, during the pendency of any proceeding under this | 885 |
section, a suit or proceeding is or has been instituted to enjoin | 886 |
or otherwise to prevent the carrying out of the action as to which | 887 |
the partner has dissented, the proceeding instituted under this | 888 |
section shall be stayed until the final determination of the other | 889 |
suit or proceeding. Unless any provision of division (G) of | 890 |
section 1775.50 of the Revised Code is applicable, the fair cash | 891 |
value of the interests that is agreed upon by the parties or fixed | 892 |
under this section shall be paid within thirty days after the date | 893 |
of final determination of such value under this division or the | 894 |
consummation of the merger or consolidation, whichever occurs | 895 |
last. Upon the occurrence of the last such event, payment shall | 896 |
be made immediately to a holder of uncertificated interests | 897 |
entitled to such payment. In the case of holders of interests | 898 |
represented by certificates, payment shall be made only upon and | 899 |
simultaneously with the surrender to the domestic general | 900 |
partnership of the certificates representing the interests for | 901 |
which the payment is made. | 902 |
(B) If the proposal of merger or consolidation was submitted | 903 |
to the partners of the general partnership for a vote at a | 904 |
meeting, fair cash value as to those partners shall be determined | 905 |
as of the day before the day on which the vote by the partners was | 906 |
taken. If the proposal was submitted to the partners for written | 907 |
approval or other action, fair cash value as to those partners | 908 |
shall be determined as of the day before the day on which the | 909 |
request for the approval or action was sent. The fair cash value | 910 |
of an interest for purposes of this section is the amount that a | 911 |
willing seller who is under no compulsion to sell would be willing | 912 |
to accept and that a willing buyer who is under no compulsion to | 913 |
purchase would be willing to pay, but the fair cash value paid to | 914 |
any partner shall not exceed the amount specified in the demand of | 915 |
that partner. In computing such fair cash value, any appreciation | 916 |
or depreciation in market value resulting from the merger or | 917 |
consolidation shall be excluded. | 918 |
Sec. 1775.52. If a domestic general partnership is a | 919 |
constituent entity to a merger or consolidation that has become | 920 |
effective, and the domestic general partnership is not the | 921 |
surviving or resulting entity of the merger or consolidation, a | 922 |
judgment creditor of a partner of that domestic general | 923 |
partnership shall not levy execution against the assets of the | 924 |
partner to satisfy a judgment based on a claim against the | 925 |
surviving or resulting entity of the merger or consolidation | 926 |
unless any of the following applies: | 927 |
(A) The claim is for an obligation of the domestic general | 928 |
partnership for which the partner is liable as provided in this | 929 |
chapter and one of the following applies: | 930 |
(1) A judgment based on the same claim has been obtained | 931 |
against the surviving or resulting entity of the merger or | 932 |
consolidation and a writ of execution on the judgment has been | 933 |
returned unsatisfied in whole or in part. | 934 |
(2) The surviving or resulting entity of the merger or | 935 |
consolidation is a debtor in bankruptcy. | 936 |
(3) The partner has agreed that the creditor need not | 937 |
exhaust the assets of the domestic general partnership that was | 938 |
not the surviving or resulting entity of the merger or | 939 |
consolidation. | 940 |
(4) The partner has agreed that the creditor need not | 941 |
exhaust the assets of the surviving or resulting entity of the | 942 |
merger or consolidation. | 943 |
(B) A court grants permission to the judgment creditor to | 944 |
levy execution against the assets of the partner based on a | 945 |
finding that the assets of the surviving or resulting entity of | 946 |
the merger or consolidation that are subject to execution are | 947 |
clearly insufficient to satisfy the judgment, that exhaustion of | 948 |
the assets of the surviving or resulting entity of the merger or | 949 |
consolidation is excessively burdensome, or that the grant of | 950 |
permission is an appropriate exercise of the court's equitable | 951 |
powers. | 952 |
(C) Liability is imposed on the partner by law or contract | 953 |
independent of the existence of the surviving or resulting entity | 954 |
of the merger or consolidation. | 955 |
Sec. 1782.241. (A) A general partner shall perform the | 956 |
duties of a general partner in good faith, in a manner the general | 957 |
partner reasonably believes to be in or not opposed to the best | 958 |
interests of the limited partnership, and with the care that an | 959 |
ordinarily prudent person in a like position would use under | 960 |
similar circumstances. In performing a general partner's duties, | 961 |
a general partner is entitled to rely on information, opinions, | 962 |
reports, or statements, including financial statements and other | 963 |
financial data, that are prepared or presented by either of the | 964 |
following: | 965 |
(1) One or more general partners, employees of the limited | 966 |
partnership, or employees of a general partner, who the general | 967 |
partner reasonably believes are reliable and competent in the | 968 |
matters prepared or presented; | 969 |
(2) Legal counsel, public accountants, or other persons as | 970 |
to matters that the general partner reasonably believes are within | 971 |
the person's professional or expert competence. | 972 |
(B) For purposes of division (A) of this section, the | 973 |
following apply: | 974 |
(1) A general partner shall not be found to have violated | 975 |
the duties of a general partner under division (A) of this | 976 |
section, unless it is proved by clear and convincing evidence that | 977 |
the general partner has not acted in good faith, in a manner the | 978 |
general partner reasonably believes to be in or not opposed to the | 979 |
best interests of the limited partnership, or with the care that | 980 |
an ordinarily prudent person in a like position would use under | 981 |
similar circumstances, in any action brought against the general | 982 |
partner, including actions involving or affecting the general | 983 |
partner's service in any other position or relationship with the | 984 |
limited partnership. | 985 |
(2) A general partner shall not be considered to be acting | 986 |
in good faith if the general partner has knowledge concerning the | 987 |
matter in question that would cause reliance on information, | 988 |
opinions, reports, or statements that are prepared or presented by | 989 |
the persons described in divisions (A)(1) and (2) of this section | 990 |
to be unwarranted. | 991 |
Sec. 1782.242. No contract, action, or transaction shall be | 992 |
void or voidable with respect to a limited partnership for the | 993 |
reason that the contract, action, or transaction is among or | 994 |
affects the limited partnership and one or more of its partners, | 995 |
or that the contract, action, or transaction is among or affects | 996 |
the limited partnership and any other person in which one or more | 997 |
of the partners are directors, trustees, officers, or partners, or | 998 |
have a financial or personal interest, if any of the following | 999 |
applies: | 1000 |
(A) The material facts as to the partner or partners and | 1001 |
their relationship or interest and as to the contract, action, or | 1002 |
transaction are disclosed in writing to every partner before that | 1003 |
partner is admitted to the partnership. | 1004 |
(B) The material facts as to the partner or partners and | 1005 |
their relationship or interest and as to the contract, action, or | 1006 |
transaction are disclosed in writing to all partners; the | 1007 |
contract, action, or transaction is fair as to the limited | 1008 |
partnership; and the disinterested general partners acting in good | 1009 |
faith reasonably justified by the facts, authorize the contract, | 1010 |
action, or transaction by a majority vote, even though the | 1011 |
disinterested general partners constitute less than a majority of | 1012 |
the general partners. | 1013 |
(C) The contract, action, or transaction is fair as to the | 1014 |
limited partnership as of the time the contract, action, or | 1015 |
transaction is authorized and approved by a majority in interest | 1016 |
of the disinterested limited partners. | 1017 |
Sec. 1782.433. (A) Upon the adoption by each constituent | 1018 |
entity of an agreement of merger or consolidation pursuant to | 1019 |
section 1782.431 or 1782.432 of the Revised Code, a certificate of | 1020 |
merger or consolidation shall be filed with the secretary of state | 1021 |
that is signed by an authorized representative of each constituent | 1022 |
entity. The certificate shall be on a form prescribed by the | 1023 |
secretary of state and shall set forth only the information | 1024 |
required by this section. | 1025 |
(B)(1) The certificate of merger or consolidation shall set | 1026 |
forth all of the following: | 1027 |
(a) The name and the form of entity of each constituent | 1028 |
entity and the state under the laws of which each constituent | 1029 |
entity exists; | 1030 |
(b) A statement that each constituent entity has complied | 1031 |
with all of the laws under which it exists and that the laws | 1032 |
permit the merger or consolidation; | 1033 |
(c) The name and mailing address of the person or entity | 1034 |
that is to provide, in response to any written request made by a | 1035 |
shareholder, partner, or other equity holder of a constituent | 1036 |
entity, a copy of the agreement of merger or consolidation; | 1037 |
(d) The effective date of the merger or consolidation, which | 1038 |
date may be on or after the date of the filing of the certificate; | 1039 |
(e) The signature of the representative or representatives | 1040 |
authorized to sign the certificate on behalf of each constituent | 1041 |
entity and the office held or the capacity in which the | 1042 |
representative is acting; | 1043 |
(f) A statement that the agreement of merger or | 1044 |
consolidation is authorized on behalf of each constituent entity | 1045 |
and that the persons who signed the certificate on behalf of each | 1046 |
entity are authorized to do so; | 1047 |
(g) In the case of a merger, a statement that one or more | 1048 |
specified constituent entities will be merged into a specified | 1049 |
surviving entity or, in the case of a consolidation, a statement | 1050 |
that the constituent entities will be consolidated into a new | 1051 |
entity; | 1052 |
(h) In the case of a merger, if the surviving entity is a | 1053 |
foreign entity not licensed to transact business in this state, | 1054 |
the name and address of the statutory agent upon whom any process, | 1055 |
notice, or demand may be served; | 1056 |
(i) In the case of a consolidation, the name and address of | 1057 |
the statutory agent upon whom any process, notice, or demand | 1058 |
against any constituent entity or the new entity may be served. | 1059 |
(2) In the case of a consolidation into a new domestic | 1060 |
corporation, limited liability company, or limited partnership, | 1061 |
the articles of incorporation, the articles of organization, or | 1062 |
the certificate of limited partnership of the new domestic entity | 1063 |
shall be filed with the certificate of merger or consolidation. | 1064 |
(3) In the case of a merger into a domestic corporation, | 1065 |
limited liability company, or limited partnership, any amendments | 1066 |
to the articles of incorporation, articles of organization, or | 1067 |
certificate of limited partnership of the surviving domestic | 1068 |
entity shall be filed with the certificate of merger or | 1069 |
consolidation. | 1070 |
(4) If the surviving or new entity is a foreign entity that | 1071 |
desires to transact business in this state as a foreign | 1072 |
corporation, limited liability company, or limited partnership, | 1073 |
the certificate of merger or consolidation shall be accompanied by | 1074 |
the information required by division (B)(7), (8), or (9) of | 1075 |
section 1782.432 of the Revised Code. | 1076 |
(5) If a foreign or domestic corporation licensed to | 1077 |
transact business in this state is a constituent entity and the | 1078 |
surviving or new entity resulting from the merger or consolidation | 1079 |
is not a foreign or domestic corporation that is to be licensed to | 1080 |
transact business in this state, the certificate of merger or | 1081 |
consolidation shall be accompanied by the affidavits, receipts, | 1082 |
certificates, or other evidence required by division (H) of | 1083 |
section 1701.86 of the Revised Code, with respect to each domestic | 1084 |
constituent corporation, and by the affidavits, receipts, | 1085 |
certificates, or other evidence required by division (C) or (D) of | 1086 |
section 1703.17 of the Revised Code, with respect to each foreign | 1087 |
constituent corporation licensed to transact business in this | 1088 |
state. | 1089 |
(C) If any constituent entity in a merger or consolidation | 1090 |
is organized or formed under the laws of a state other than this | 1091 |
state or under any chapter of the Revised Code other than this | 1092 |
chapter, there also shall be filed in the proper office all | 1093 |
documents that are required to be filed in connection with the | 1094 |
merger or consolidation by the laws of that state or by that | 1095 |
chapter. | 1096 |
(D) Upon the filing of a certificate of merger or | 1097 |
consolidation and other filings as described in division (C) of | 1098 |
this section or at any later date that the certificate of merger | 1099 |
or consolidation specifies, the merger or consolidation is | 1100 |
effective. | 1101 |
(E) The secretary of state shall furnish, upon request and | 1102 |
payment of
the fee
specified in division
| 1103 |
111.16 of the Revised Code, the secretary of state's certificate | 1104 |
setting forth: the name and form of entity of each constituent | 1105 |
entity and the states under the laws of which each constituent | 1106 |
entity existed prior to the merger or consolidation; the name and | 1107 |
the form of entity of the surviving or new entity and the state | 1108 |
under the laws of which the surviving entity exists or the new | 1109 |
entity is to exist; the date of filing of the certificate of | 1110 |
merger or consolidation with the secretary of state; and the | 1111 |
effective date of the merger or consolidation. The certificate of | 1112 |
the secretary of state, or a copy of the certificate of merger or | 1113 |
consolidation certified by the secretary of state, may be filed | 1114 |
for record in the office of the recorder of any county in this | 1115 |
state and, if filed, shall be recorded in the records of deeds for | 1116 |
that county. For that recording, the county recorder shall charge | 1117 |
and collect the same fee as in the case of deeds. | 1118 |
Section 2. That existing sections 111.16, 1775.20, and | 1119 |
1782.433 of the Revised Code are hereby repealed. | 1120 |